Thursday, 30 October 2008

Changing children's arrangements: Rice and Asplund revisited (again)

The Full Court of the Family Court has considered in the recent case of Miller and Harrington at the question of the Rule in Rice and Asplund. The Rule is in effect- where there are existing orders concerning children, should an applicant demonstrate that there has been a factual change before being able to proceed when seeking parenting orders in court? I blogged about this earlier this year, highlighting the recent decision in SPS and PLS.

The court held in Miller and Harrington:

In SPS and PLS (2008) FLC 93-363, Warnick J held:
... in strict logic,
if a judge is unable to determine on the papers if a change of circumstances,
sufficient to embark on a fresh hearing of a parenting issue exists, then what
the judge should embark upon is a hearing directed to that question, not one
directed to “how the welfare of the children should best be served”

However, ellipsis in logic or not, subsequent authority has clearly
reiterated that if the rule is not applied as a preliminary matter, then the
hearing that follows is a full hearing of the “custody dispute” [emphasis

Those statements can be seen to be supported by the earlier authorities
referred to by his Honour. (See paras 66 – 68 of Warnick J’s judgment). Warnick
J goes on to say:
... In reality, the facts that relate to the best
interests of children per se and to the determination of such questions as
whether there has been a change of circumstances of sufficient magnitude to
justify a fresh consideration of parenting arrangements are likely to be
identical or at least intertwined and to the extent that the facts are
otherwise, they may well not be susceptible of identification or assessment for
weight until all of the evidence bearing upon factors that relate to a child’s
best interests are before a court. The nature of the hearing that follows if the
Rice v Asplund rule is not applied as a preliminary matter, as described by
authority, may well be the wise and practical choice.

Later, Warnick J says:
Thus, in my view, when the threshold
question described in Rice and Asplund is determined as a preliminary matter, it
remains a determination “on the merits”. Where an application is dismissed at a
preliminary stage, it is not dismissed for some technical reason, such as the
failure of the party to appear or some lack of compliance with form and
procedure, but rather because, assuming the evidence of the applicant is
accepted, there is an insufficient change of circumstance shown to justify
embarking on a hearing. Though sometimes unstated, the underlying conclusion
will, or ought be, about the interests of the child in not being subjected to
further litigation, is more powerfully in the child’s welfare, than to allow the
application to continue.

In our view, that passage need not be taken as saying that the only
way in which the rule in Rice and Asplund can be applied at a preliminary stage
is on the basis that the case of the applicant for parenting orders is taken at
its highest.

Nor, as presently advised, do we think that the authorities cited
by Warnick J in SPS preclude the possibility that, in a “preliminary”
hearing for the purpose of ascertaining if an application for parenting orders
should go no further because of the rule in Rice and Asplund, some resolution of
factual disputes may occur, for example, whether a change of circumstances has
or has not occurred.

However, the qualitative question of whether a change that has
occurred is or is not sufficiently significant to justify a full further hearing
of a parenting issue may be one much more difficult to answer in a preliminary
hearing involving resolution of only some disputed facts.

This observation may be behind the approach that either the case of the
applicant for parenting orders is, at a preliminary stage, taken at its highest,
or the hearing embarked upon is an enquiry into all matters relating to the best
interests of the child or children.

On the other hand, there is authority to suggest that these are not the
only legitimate procedures. In Collivas & Cassimatis [2007] FMCAFam 293,
Wilson FM, after noting that one party submitted that the other’s
application should be summarily dismissed as it did not overcome the threshold
imposed by cases such as Rice & Asplund, said:
...questions arise as to
the procedure to be adopted on this application. The first question is whether
the threshold question should be decided as a preliminary issue, or whether
there should be a full hearing of the evidence. The second question is, assuming
that the threshold question is decided separately how the evidence adduced by
the parties should be treated for the purpose of determining that issue. For
example, if the Court looks only to the affidavit evidence adduced by the
applicant and determines whether, on that material, the case should be allowed
to go forward, then it seems to me that there is no point allowing the
respondent to put on further affidavit evidence. On the other hand, if in
determining the threshold issue the Court effectively conducts a mini-trial,
then the respondent should be afforded the opportunity she seeks to adduce
further evidence in reply to that served late by the applicant.
Among the
authorities to which Wilson FM referred was King & Finneran (2001) FLC
93-079 at p 88,367 where Collier J said:
To apply the test in Rice
& Asplund is to make an assessment on the material then available to the
court as to whether or not the matters raised in that material make it necessary
or proper in the best interests of the children, the subject of litigation, to
allow further proceedings. ...
Wilson FM also said, of the decision in
L & L (1992) FLC 92-274, that the Full Court of the Family Court
approved of the judge at first instance dealing with a question of whether to
permit a re-opening of parenting issues as a preliminary issue and to restrict
cross-examination accordingly. He said that, in that case, evidence was adduced
from a court counsellor who was cross-examined and that the Full Court endorsed
the approach taken in that case.

However, the learned Federal Magistrate continued:
What the cases
do not make clear is the process that the court should follow if it decides the
threshold question in advance on a preliminary basis. That is, should the
application be dealt with as on a demurrer or strike out application, and the
court only look at the material of the applicant and decide, on that material
alone, whether, assuming it is accepted, there is sufficient evidence to warrant
the earlier orders being revisited. Or should the court treat the application
similarly to a summary judgment application, and look at the material of both
sides, and decide whether there is a serious issue raised which justifies the
earlier orders being revisited. Or should the court effectively conduct a trial
on the preliminary issue, with evidence and cross examination on the alleged
change in circumstances.

There is some guidance as to the approach to be adopted. In R & B
H, supra, the use of language that the court should be left in no doubt that it
is necessary to revisit the parenting orders supports a critical analysis of the
applicant’s material. Although the passage from King & Finneran seems to
suggest that court looks at all material then available to the court, which
encompasses the material from both sides, it seems to me that the court should
logically follow a three step process, sequentially dealing with the three
questions articulated in paragraph 18 above. Each case will vary of course as to
the stage at which the decision can be made that there is/is not sufficient
evidence to warrant a re-opening of the parenting issues. As the learned authors
of Australian Family Law & Practice, Brown (sic) & Fowler, observe at
[16-360], the Full Court of the Family Court has made it clear that the question
of whether there were circumstances which required a reconsideration of a
parenting issue might, but need not, be determined as a preliminary issue.
However, the court may consider that in light of the alleged changed
circumstances, it was more appropriate to consider all the facts of the case
before deciding whether the changes (sic) circumstances existed. An applicant’s
material might disclose no change in circumstance such that the application can
be summarily dismissed without a respondent being required to put on evidence.
An applicant’s material might raise the suggestion that there is a changed
circumstance which requires investigation but after reading the respondent’s
material the court might be satisfied that there is nothing in the point raised.
The court may, as a matter of discretion determine the threshold issue without
testing the evidence. Alternatively there maybe contested issues of fact as to
whether there are changed circumstances in which case a court may need to hear
from witnesses and allow cross-examination. (emphasis added)

In the following paragraph, Wilson FM set out passages from the
decision of the Full Court of the Family Court in Saad & Saad (1993) FLC
We refer to several of the paragraphs quoted, as they bear on the
question under discussion:
(3) Although it may be inappropriate, and is often
unhelpful, in proceedings in relation to the guardianship and custody of or
access to a child, to treat either party as bearing an onus of proof in relation
to the welfare of the child, where a party applies for the variation or
discharge of an existing order of that kind that party bears at least a forensic
onus of placing before the Court sufficient evidence of changed circumstances
since the making of the existing order upon which the Court could be satisfied
that it is in the interests of the welfare of the child to vary or discharge
that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC
(4) It was therefore not for the wife to adduce evidence sufficient
to satisfy her Honour that Burton, J’s orders should continue in force, but
rather for the husband to at least place before her evidence sufficient to
justify a reconsideration of those orders, and only if that were done was her
Honour called upon to decide, in the exercise of her discretion, whether the
welfare of the child required the discharge or variation of those orders, or
their continuance.
These passages may imply that the initial examination is
on the case put forward by the applicant for variation. However, in the
following passages the Full Court spoke of other material to which a judge might
have regard in such and examination.
(6) In determining the husband’s
application, her Honour was entitled to have regard not only to the evidence
placed before her by the parties and to the orders of Burton, J. which she was
being asked to vary, but also, for the purpose of deciding whether there had
been any relevant change of circumstances since the making of those orders, to
Burton J’s published reasons for making them, and to any other relevant orders
of the Court to which her attention was directed by the parties or by the
material before her. Had there been in existence a transcript of the proceedings
before Burton, J. leading to his orders of 6 June, 1989, she would have been
entitled to have regard to that also, or at least to those parts of it which
related to the orders which she was being asked to vary or discharge.
...(emphasis added)

On a topic that has not been often examined, we think the discussion by
Wilson FM a useful one. However, because, as we have said, the topic was not the
subject of submissions before us, we do not necessarily express agreement with
all that Wilson FM has said nor address further any tension which may exist
between those cases which appear to speak of but two choices, either the
application of the rule as a preliminary matter taking the applicant’s case at
its highest or a full hearing, and those cases that suggest a broader range of
process. (emphasis added)

Wednesday, 29 October 2008

When it comes to court, be honest...

A recent Family Court case has demonstrated, yet again, that when people come to court they need to be honest.

In Sikorski and Sikorski, the Full Court had to consider an application by the husband on appeal to present fresh evidence, relating to the alleged ownership of a property called G. The husband alleged that his parents had an interest in that property.

It must be noted that the husband was in some ways behind the eight ball because he had been found at the trial to have spent big on prostitutes and gambling. The husband had asserted that the wife had stolen from him a large quantity of cash and gambling chips. The trial judge found that the husband was putting forward proposals to make up for those losses.

In support of his application to the Full Court, the husband did not explain why his parents were unable to give evidence at the trial.

He then tried to tender a document. The court rejected it, saying:

We are not satisfied that it would be appropriate to allow the husband
to adduce the document allegedly relating to the G units for the following
(a) If this document was a genuine document we would have expected
the husband would have raised its existence with the learned trial judge, but
that was not done. Further, the wife was not cross examined as to the alleged
theft of not only this document but of any documents. The wife was cross
examined only as to the alleged theft of a substantial quantity of cash at the
same time.
(b) There is serious doubt as to the genuineness of this
document. The document appears to have been created from a printed landlord and
tenant agreement which had the wife’s signature on it for that purpose. The
reference to landlord and tenant has been deleted and the word “owner”
substituted. As the wife’s counsel submitted, it is questionable as to why this
document was prepared in this way and also, if it was a genuine document the
wife would have signed as an owner and not as a witness given that at this time
she was a joint owner with the husband of the G property.
(c) A further
troublesome fact is that the husband had presented to the learned trial judge as
an annexure to an affidavit a document dated 3 April 1997 and which
purported to be a “contract agreement” between the husband and his parents “to
secure 50% ownership of property located at [G] SA for the sum of $50,000”. It
is curious that if this document was genuine why the document dated 15 June
1997 was prepared. The husband was unable to answer that question. We also note
that the learned trial judge referred to the annexure to the husband’s affidavit
in finding that the husband’s parents did not acquire an interest in the G
units. His Honour referred to the denial by the husband that this document was
prepared by his parents to assist him with this case and the further denial that
this document was prepared after the date shown on it. The learned trial judge
was not satisfied by the husband’s explanation, and that is consistent with his
Honour’s findings generally as to the lack of credit of the husband.
(d) At the very least this is a controversial document and if it was admitted there
would be the need for further extensive evidence in cross examination and hence
a new trial.

Tuesday, 28 October 2008

Major long-term issues decided

In the recent Family Court case of Chappell and Chappell, the Full Court considered as to what constituted "major long-term issues".

The court held:

The 2006 amendments provide no substitute for a specific issues order
to deal with arrangements for the day-to-day care, welfare and development of a
child although s 65DAE, which we will shortly discuss, makes it clear that
where parents or another person have an order for shared parental
responsibility, they do not need to confer on matters which are not major
long-term issues.

We acknowledge there are some remnants of the concept of “day-to-day
care, welfare and development” in the Act. For example, there is reference to it
in the definition in s 4(1) of a “Subdivision C parenting order”. This
definition was introduced by the 2006 amendments; however, it relates to the
registration of overseas orders concerning children.

There is also reference to the concept in s 69Z, which provides
that a medical procedure required to be carried out pursuant to an order for
parentage testing in relation to a child must not be carried out without the
consent, inter alia, of “a person who, under a parenting order, has
responsibility for the child’s long-term and day-to-day care, welfare and
development”. (Section 69Z was amended by the 2006 legislation, but only by
deleting the expression “specific issues order” and replacing it with “parenting

Otherwise, the 2006 amendments removed all reference in the legislation
to a child’s “long-term or day-to-day care, welfare and development” – see
ss 26B(1A), 37A(2A), 64B(6), 65G(1), 65P(1), 65X, 67K, 67Q, 67T, 68B, 68M,
79A(1AA), 90K(2), 92A(2)(bb) and 111B(4).
The amendments do not, however,
eschew the concept of “care, welfare and development” of children. On the
contrary, s 60B, which sets out the objects and underlying principles of Part
VII of the Act uses that formulation on three separate occasions....

As the note to s 65DAC indicates, the section must be read in
conjunction with s 65DAE, which was also inserted by the 2006 amendments.
That section indicates that there is a range of issues about which parents do
not need to consult with each other, even if there is an order for shared
parental responsibility...

(I)t will be observed from s 65DAE that in dealing with matters of
parental responsibility the legislation is now constructed around the concept of
“major long-term issues”. If an issue is a “major long-term” issue then parents
must consult and ideally reach agreement. If the issue is not a “major
long-term” issue, then consultation is unnecessary and parents may act

How in practice does a parent (or ultimately a Court) determine whether
or not an issue of parental responsibility is a “major long-term” issue? It will
be noted that the s 4 definition is somewhat circular and does little to
elucidate, in particular, what is meant by “long-term”. Some clue to the likely
dilemmas of categorisation is provided by the note to s 65DAE which
indicates that decisions about such things as what a child eats or wears are
“usually not major long-term issues” (see s 15AD of the Acts Interpretation
Act 1901 and the discussion of the use of notes in Pearce, D C and Geddes, R,
Statutory Interpretation in Australia, 6th ed, LexisNexis, Australia, 2006, at
p 163). Clearly in the note it is contemplated that, for some children,
decisions about matters such as what they wear and/or what they eat can be both
“major” and “long-term”. Hence, the legislation contemplates a degree of
elasticity in determining where the line falls between those decisions that are
“major long-term” and those that are not. Such elasticity, in our view, affords
proper recognition to the almost endless variety of family

In order to rebut the presumption [of equal shared parental
responsibility] it is necessary for the Court to make a finding that it would
not be in the best interests of the child for the presumption to be applied. We
accept that in determining what is in the child’s best interests the Court must
take into account the prescribed matters in ss 60CC(2) and (3), one of
which requires the Court to consider whether it would be preferable to make the
order least likely to lead to the institution of further proceedings. In our
view, it would be an appropriate exercise of discretion in some cases to find
that application of the presumption would not be in the child’s best interests
because the track record of the parents would suggest a high probability of
deadlock, which would inevitably lead to further proceedings. In such cases,
however, the process of reasoning required to rebut the presumption would
involve findings related to the welfare of the child, rather than findings
concerning, for example, the likelihood that schools and hospitals would find it
easier to deal with one parent rather than two.

We can also envisage circumstances in which the Court, in the proper
exercise of discretion, might make very specific orders in relation to issues
which could be loosely described as relating to the “management” of particular
aspects of a child’s welfare. Thus, for example, in the present matter his
Honour might appropriately have made an order that the wife have responsibility
for making of appointments with the speech therapist, as this has been a point
of contention. However, where the Court proposes (as his Honour did in this
case), to give one of the parents a form of responsibility for issues as broad
as “health” and “education”, we consider this should ordinarily be done by use
of the concepts prescribed by the legislation itself.

As we have discussed above, the Act provides only one basis for the
broad categorisation of matters that require decisions to be made in the
performance of parental responsibility. That is the distinction between matters
that involve “major long-term issues” and matters that do not.
We do not, of
course, suggest it is always easy to determine whether or not an issue is a
“major long-term issue”. On the contrary, we consider the distinction between
major long-term issues and other issues is already sufficiently fraught with
ambiguity as to make it imperative that no greater degree of ambiguity be
introduced by use of other nebulous concepts that find no foundation in the
words of the legislation.

Monday, 27 October 2008

Sounds like a script from Two and a Half Men...

It's funny how many cases are now being published that it is almost impossible to keep up. I use this excuse because I have only just stumbled across a Family Court case published in May, which sounded like a script from Two and a Half Men.

Mr Tristan was married and in 1978 he was posted by work to Arizona where for about a month he had non-stop partying and drinking.

And then , many years later, after he had divorced his wife (they were separated in 78) and remarried, US government officials showed him another marriage certificate with his name on it - from Arizona in 1978, and yes he knew the woman. He had absolutely no recollection of that marriage or even of discussing marriage. The "wife" named on the certificate apparently had since remarried.

Why it interested US government officials was because they pointed out that when he married his current girlfriend that marriage was bigamous (and void) because of the Arizona "marriage".

When the matter came before Justice Brown in the Family Court, her Honour had no hesitation in declaring the marriage a nullity because at the time of the Arizona "marriage" Mr Tristan was already married.

Sunday, 26 October 2008

Family Court misses all KPI's: report

The Family Court has missed all of its key performance indicators, according to its latest annual report, according to The Australian, being able to finish 31% of applications for final orders within 6 months, as opposed to 75% according to its targets, and 64% of interim applications within 3 months, when its target is 90%.

And this has happened at a time when, according to The Australian, its workload has "plummeted".

Friday, 24 October 2008

Best interests test applies to ACC: Federal Court

The Federal Court has held that the Australian Crime Commission, in issuing notices, is obliged to take into account the best interests of a child as a primary consideration. The court set aside the notices, issued by the Commission under the Northern Territory intervention, to a medical clinic known as NTD8, which had inserted a number of contraceptive implants in girls aged 13 to 15.

In doing so, the court in the recent Federal Court case of NTD8 v ACC (No2) followed the High Court decision in Teoh's case. In the words of Justice Reeves:

25 It is common ground between the parties that the best interests of the
children concerned is a consideration which Mr Anderson was obliged to take into
account in issuing the amended notice. The parties agree that, in the context of
these proceedings, this flows from a number of matters including: the amendments
made to the ACC Act by the FACSIA Act (see [20] above), the Minister’s Second
Reading Speech on the FACSIA Bill and the Explanatory Memorandum for the FACSIA
26 However, the point of departure between the parties is whether in
issuing the amended notice, Mr Anderson was obliged to take into account the
best interests of the children concerned as a primary consideration (emphasis
added). NTD8
says he was, essentially relying upon the High Court’s decision in Minister for Immigration and Ethnic
Affairs v Teoh (1995) 183 CLR 273
(‘Teoh’). The ACC says that he was not. It says s 29(1A) of the ACC Act bestowed
upon Mr Anderson a general discretionary power and, while he had to take into
account the best interests of the children concerned as a consideration, he did
not have to make it a primary consideration vis a vis other considerations such
as the purpose and objects of the ACC Act, the determination issued by the Board
of the ACC and the Special Intelligence Operation.
27 In my view, NTD8
is correct in its submissions. So much is clear, in my view, from what the High
Court said in Teoh. In that case, the High Court had to consider what effect
Australia’s ratification of the Convention on the Rights of the Child had on
administrative decision-makers when they were making decisions affecting the
interests of children. Of particular relevance was Article 3 of the Convention
on the Rights of the Child which states:"In all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration."
28 The majority in Teoh held that,
absent statutory or executive indications to the contrary, Australia’s
ratification of the Convention on the Rights of the Child gave rise to a
legitimate expectation that administrative decision-makers in decisions
concerning children will take into account the best interests of the children
concerned as a primary consideration and if they do not intend to do so, they
should give the persons affected an opportunity to be heard: see Teoh at 291 per
Mason CJ and Deane J, at 302 per Toohey J, and at 304 per Gaudron J (agreeing
with Mason CJ and Deane J on this aspect).
29 In addition, Gaudron J
expressed the view (at 304) that "quite apart from the Convention or its
ratification, any reasonable person who considered the matter would, in my view,
assume that the best interests of the child would be a primary consideration in
all administrative decisions which directly affect children as individuals and
which have consequences for their future welfare."
30 In Teoh, three of the
majority made it clear that while the best interests of the children concerned
had to be taken into account as a primary consideration, that did not mean other
considerations had to be ignored. Instead, they said that the decision-maker is
required to: "Give [the best interests of the child] first importance along with
such other considerations as may, in the circumstances of a given case, require
equal, but not paramount, weight ..." at 298 per Mason CJ and Deane J; and
"there may be other interests carrying equal weight", at 302 per Toohey J.
31 To similar effect, the Full Court of this Court held in Wan v Minister
for Immigration and Multicultural Affairs 107 FCR 133; [2001]
FCA 568
(‘Wan’) at [32] that: "Provided that the Tribunal did not treat any
other consideration as inherently more significant than the best interests of
[the] children it was entitled to conclude, after proper consideration of the
evidence and other material before it, that the strength of other considerations
outweighed the best interests of the children". Further, at [33]: "The Tribunal
was entitled to regard the expectations of the Australian community as a primary
consideration provided that it did not overlook that, on the procedure which it
had adopted, procedural fairness demanded that it act on the basis that the best
interests of [the] children were a consideration of equal significance (ie also
a primary consideration)". Wan was a case dealing with a decision by the
Administrative Appeals Tribunal to affirm a decision of the Minister’s delegate
to refuse to grant a permanent residence visa to the father of two children aged
eight and 20 months who were Australian citizens. See also Sebastian v Minister
for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC
(‘Sebastian’) at [10].
32 In my view, therefore, the effect of the
High Court’s decision in Teoh is to identify the best interests of the children
concerned as, to use the words of Mason J in Peko "a relevant factor of great
importance" to which the decision-maker is required to give adequate weight: see
Peko at 41. Viewed in this way, the Court has declared what weight should be
given to it as a factor, thereby creating an exception to the general rule that
the weight to be given to a particular consideration is a matter for the
administrative decision-maker: see Peko at 41 per Mason J. By comparison, in his
dissenting judgment in Teoh, McHugh J thought that the general rule should apply
and the decision-maker, not the courts, should determine what weight should be
given to it as a consideration: see Teoh at 321.
33 As to the qualification
"statutory or executive indications to the contrary" mentioned in Teoh, the Full
Court of this Court has expressed the view that broad, general statements (which
presumably includes the Ministerial statements made in relation to Teoh in 1995
and 1997), were not effective indications to the contrary. Instead, it said
greater specificity would be needed directed to the manner in which the
particular decisions in question are made: see Lam v Minister for Immigration
and Multicultural Affairs (2006) 157 FCR 215; [2006] FCAFC
at [30].
See also the discussion in Duxbury A, The Impact and Significance of Teoh and
Lam in Groves and Lee, Australian Administrative Law, Cambridge University Press
2007 at page 305.
34 No such indications to the contrary have been pointed to
by counsel in this case.
35 For these reasons, I hold that the High Court’s
decision in Teoh required that in issuing the amended notice, Mr Anderson had to
take into account the best interests of the children concerned as a primary

His Honour held:

42 In my view, these decisions require that an administrative
decision-maker who is required to take into account the best interests of
children as a primary consideration should:
(a) identify what the best
interests of the children concerned are and what they call for in the
(b) identify any other considerations that are worthy of equal
importance; and
(c) determine which consideration is to be given the greater
weight in coming to the final decision;

The clinic, not surprisingly, was concerned that the Crime Commission would trawl through the records and then drag the girls in for questioning.

Reeves J noted that there were frank admissions by a Mr Anderson, who had issued the notice, that he had not taken the best interests of the children into account as a primary consideration, and that:

51 In summary, a fair reading of Mr Anderson’s affidavit and its annexures
shows that he:
• did not make any assessment of what the best interests of
these eight young Aboriginal children were, or what they called for in the
• in particular, did not make any real assessment of the views
expressed by Dr Bell and Nurse Gooley as to where the best interests of these
eight young Aboriginal children may lie;
• did not treat the best interests
of these eight young Aboriginal children as a primary consideration and,
therefore, did not weigh that primary consideration against other considerations
of equal, but not paramount, importance in coming to his final decision; and
• instead, simply relied upon other considerations as the primary
considerations in coming to his decision.

Thursday, 23 October 2008

Family Court: Children required to go to father's funeral

In the recent Family Court case of Ronaldson and Ronaldson, the father of four young kids aged between 8 and 3 was about to die from a brain tumour. There was no love lost between the mother and the paternal grandparents. The immediate question for the court was who was going to take the children to their father's funeral?

The mother proposed that she take them. The father's parents proposed that they have the children for 24 hours including the funeral.

The mother said that the father had been violent when they were together, and alleged that she had been assaulted by the paternal grandfather and that post-separation the father and his parents had attempted to abduct the children from school.

The paternal grandfather did not help things along in court by calling the mother the "so-called mother" and a never ending stream of vitriol towards her.

Ultimately Justice Cronin held that:
  • the mother should deliver the children to the paternal grandmother 15 minutes before the service
  • the mother should remain at a respectful distance during the service, and leave shortly afterwards
  • the children should be able to stay for the wake, and later back to the mother, enabling them to talk to their mother about what must be a very confusing time.

Judges of the Family Court are at times expected to have the wisdom of Solomon. Justice Cronin for me had this pearl of wisdom in his judgment:

It is also troubling that the funeral is an unresolved matter as well. This will be a time when the grandparents will be grieving as adults whilst the children will have to try to come to grips with the long term loss of their father. The funeral
is for the living not the dead and as such, the children will be more of
assistance to the grieving of the grandparents than the other way around. In
my view, the children should be a part of that process because they
represent the replacement of the joy and love lost in the death of their
son. That is hard for any parent at any age to handle... the attendance of
the children is of vital importance but more for the comfort of the

Whither ABC?

There are often two staples for parents with young kids, and both are named ABC. One of course is on TV, and can provide hours of entertainment and for those of us longer in the tooth, years of memories, and the other is the child care provider.

The reality of life is that often both parents are working and require assistance in the care of children to enable both to work. That assistance is most commonly given by ABC Learning Centres which as I understand it run about 1000 child care centres in Australia.

When parents split up, if they are already using child care centres, they become no less important. Sometimes their vital role increases, because in addition to enabling both parents to work (both of whom are often less well off immediately after they split) they also allow the children some peace and normality in their lives and then become a place where children are collected or dropped off by each of the parents who now do not need to see each other.

What is especially concerning now is that ABC Learning Centres are in trouble. Founder and then CEO Eddie Groves is gone. Shares recently have been trading at zero.

Now, according to a report in The Australian, government officials have been telling Senate Estimates Committee hearings that the Government is planning for the possible contingency of the collapse of ABC Learning Centres. I just hope that whatever happens that the children are safe and that parents can send their children to a child care centre confident in the knowledge that when they collect their children at the end of the day they are not told: "This centre will be closed form tomorrow." I just hope that doesn't come to pass.

Thursday, 2 October 2008

Offbeat: US judge orders woman not to have any more children

In a decision of apparent doubtful constitutionality, Texan Judge Charlie Baird has ordered that as a condition of her probation that Felicia Salazar not conceive or bear any more children.

Salazar " admitted to failing to provide protection and medical care to her then-19-month-old daughter, who suffered broken bones and other injuries when she was beaten by her father. Both Salazar and the father relinquished their parental rights, and the daughter was placed in foster care."

For the full story, on the Wall Street Journal Law Blog click here.

Wednesday, 1 October 2008

NT: draft mandatory DV reporting Bill

Back in August, I posted an article about how the NT was proposing laws so that there was mandatory reporting of domestic violence.

The Northern Territory Government has now circulated a draft of the Domestic and Family Violence Amendment Bill 2008. The new mandatory clauses are contained in new sections 124A and 125:

Reporting domestic violence
(1) An adult commits an offence if the person:
(a) believes on reasonable grounds:
(i) another person has caused, or is likely to cause, harm to
someone else with whom the other person is in a
domestic relationship; or
(ii) another person's life or safety is under serious or
imminent threat because domestic violence has been or
is being committed; and
(b) does not, as soon as practicable after forming the belief,
report (orally or in writing) to a police officer:
(i) the belief; and
(ii) any knowledge of the person forming the grounds for the
belief; and
(iii) any factual circumstances on which that knowledge is
Maximum penalty:
200 penalty units.
(2) It is a defence to a prosecution for an offence against
subsection (1) if the defendant has a reasonable excuse.
(3) Without limiting subsection (2), it is a reasonable excuse for the
defendant to establish the defendant honestly and reasonably
believed someone else who had formed the same belief had
already made a report under subsection (1) about the belief.
(4) On receipt of the report, the police officer must take reasonable
steps to ensure the report is investigated.
(5) This section has effect despite another law of the Territory.
(6) In this section:
harm means physical harm that is serious harm.
physical harm, see section 1A of the Criminal Code.
serious harm, see section 1 of the Criminal Code.

Repeal and substitution of section 125
Section 125
repeal, substitute
Protection for reporting domestic violence
(1) A person acting in good faith in making a report under section 124A
is not civilly or criminally liable, or in breach of any professional
code of conduct:
(a) for making the report; or
(b) for disclosing any information in the report.
(2) In any proceeding before a court, except with the court's leave:
(a) the report or evidence of its contents is not admissible; and
(b) a person cannot be compelled to give evidence, or to produce
a record, about the report or the identity of the maker of the
(3) The leave may be granted only if:
(a) the report, evidence or record is of critical importance to the
proceeding; and
(b) failure to grant the leave would prejudice the proper
administration of justice.

What extraordinary provisions!

Imagine how section 124A might happen in legal practice. A male client comes in to see his lawyer. He has been charged, say, with assault of his wife. The lawyer asks, not unreasonably, "have you ever assaulted your wife?" The response might be: "Yes, I once gave her a push." As soon as the client has given that answer, the lawyer is obliged to advise the police. Failure to do so constitutes an offence.

This provision will have immediate consequences to clients acting in a full and frank manner with their lawyers and giving open and honest instructions.

Normally a lawyer would say they would not have to report this type of information because to do so would be in breach of legal professional privilege, as well as common law and Privacy Act confidentiality requirements.

Section 124A sets up a defence of "reasonable excuse". Ordinarily, privilege and confidentiality would be those defences. However, section 124A has effect despite another law of the Territory and section 125 makes clear that the obligation under section 124A overrides any professional code of conduct. Where this leaves privilege and privacy obligations is anyone's business.

If the lawyer believed that someone else had reported it first to police, then there is a defence. However, there are two clear limitations in the example I gave:
  1. the lawyer would have the obligation of proving the defence, not the prosecution of disproving it - therefore there would have to clear evidence as to how the lawyer formed that view- a gut instinct is clearly not enough;
  2. the lawyer would then have to ask the client about whether someone else had reported it to police, and to be safe, should obtain some supporting documents of that- which means that in all practicality that the lawyer would have to report it in the absence of documents.

I don't have any qualms in appropriate cases of lawyers reporting to police (or even to the threatened person) if a client makes a threat to kill that person. I say "appropriate cases" because it can be a fine line as to whether a client is just blowing hot and cold or whether they really do intend to kill the other party.

In cases of this type of emergency, the National Privacy Principles recognise this exception. Principle 2.1(e) allows an exception for disclosure when there are "serious threats to life, health or safety".

The Commentary on this Principle states:

This exception is aimed at emergency situations where there is a serious threat to health and safety and using or disclosing personal information will help reduce that threat. Serious and imminent threats to an individual's life, health or safety may be a threat to the individual the organisation is dealing with or another person. Ordinarily a serious threat would be a threat of bodily injury, threat to mental health, illness or death. 'Imminent' means the threatened harm is about to happen. Threats to finances and reputation or a threat of stress or anxiety would not ordinarily be serious threats to life or health.
Tips for compliance
Think about whether the proposed use or disclosure will reduce the threat. Also think about whether there are alternative reasonable ways to reduce the threat (for example, by seeking consent to the use or disclosure) - this helps in working out whether the disclosure is necessary. Organisations considering using or disclosing personal information to reduce threats to public health or public safety may find it useful to discuss the threat in general terms (and whether the proposed use or disclosure is likely to reduce the threat) with a relevant authority dealing with public health or safety, for example a health department.

Tarasoff v Regents of the University of California

Way back in 1969, a Ms Tarasoff dated a Mr Poddar. Both attended UC Berkeley, then probably (with Height-Ashbury in nearby San Francisco) the world centre of free love. Mr Poddar, an Indian, was outraged that Ms Tarasoff was going out with other men. He told his psychologist,an employee at Berkeley, that he was going to get a gun and kill Ms Tarasoff. The university told police, but did not let Ms Tarasoff know.

Subsequently, Mr Poddar killed Ms Tarasoff, and not surprisingly her family then sued Berkeley, and were successful.

The California Supreme Court set the bar for therapists:

When a therapist determines, or pursuant to the standards of his profession
should determine, that his patient presents a serious danger of violence to
another, he incurs an obligation to use reasonable care to protect the intended
victim against such danger. The discharge of this duty may require the therapist
to take one or more of various steps, depending upon the nature of the case.
Thus it may call for him to warn the intended victim or others likely to apprise
the victim of the danger, to notify the police, or to take whatever other steps
are reasonably necessary under the circumstances.

It has been known for family lawyers to be told these types of threats by clients. If family lawyers do not make a decision and notify police or the intended victim in appropriate cases, they may be held to breach the duty of care that they have to the intended victim and may have been (by their omission) partially responsible for the death or injury of that person. It has certianly been suggested to me over the years that family lawyers have an ethical obligation to make the notification.

It is certainly a matter of controversy both here and in the USA as to whether there is an exception to legal professional privilege and make the notification. Some practitioners are firmly of the view that there cannot be any such exception.

Laws such as that proposed that would clearly enable lawyers in those circumstances to report matters to police are welcome. Whether it should be an offence not to report, is another matter entirely. The element of compulsion means that a lawyer, who using their professional judgment considers that it is not "likely" that death or injury will be caused, will have to seriously question not reporting it to police for fear of being prosecuted; and on balance would probably report.